After winning three straight trials, the RIAA still can't secure a major …

Thong underwear sold by Jammie Thomas-Rasset after her first trial to pay her legal bills

Jammie Thomas-Rasset, the first US resident to have the file-sharing lawsuits against her go all the way to trial and verdict back in 2007, “lied in her trial testimony," said federal judge Michael Davis today. And her “past refusal to accept responsibility for her actions raises the need for strong deterrence."

But that deterrence won't come courtesy of a jury, which last year found Thomas-Rasset liable for $1.5 million dollars—$62,500 for each song she was accused of sharing on the KaZaA peer-to-peer network. That case was her third time through a trial; the first two trials had ended with Thomas-Rasset on the hook for $222,000 and $1.92 million, respectively. In each case, Judge Davis has altered or set aside the jury's verdict, and he did so again this morning.

Davis has found that the $1.5 million award was unconstitutional; he slashed it to $54,000—$2,250 per song. And even then, the amount was "a higher award than the Court might have chosen to impose in its sole discretion.”

Davis has done this before. After the second trial and its $1.92 million verdict, he also reduced the award to $54,000, but he elected not to do so on constitutional grounds. That decision led to Thomas-Rasset's third trial, but today's constitutionally based decision should end the matter at the District Court level. If this case is pursued—and we suspect it will be—the trial phase will end and a federal Appeals Court will take over.

Sections of the verdict are worth quoting in full; they illustrate Judge Davis' deep common sense about the case and provide a worthwhile framework for thinking about similar P2P cases.

The Court concludes that an award of $1.5 million for stealing and distributing 24 songs for personal use is appalling. Such an award is so severe and oppressive as to be wholly disproportioned to the offense and obviously unreasonable. In this particular case, involving a first-time willful, consumer infringer of limited means who committed illegal song file-sharing for her own personal use, an award of $2,250 per song, for a total award of $54,000, is the maximum award consistent with due process.

This reduced award is punitive and substantial. It acts as a potent deterrent. It is a higher award than the Court might have chosen to impose in its sole discretion, but the decision was not for this Court to make. The Court has merely reduced the jury’s award to the maximum amount permitted under our Constitution.

Davis had nothing positive to say about Thomas-Rasset, who he faulted for lying and for denying responsibility by “casting possible blame on her children and ex-boyfriend.” As for her argument that she caused no harm to the music industry, Davis “rejects her suggestion" and calls for a penalty in order to enforce copyright law, compensate the record labels, and “deter future copyright infringement.”

But Davis was at his most Old Testament when blasting the huge damage awards handed down.

There is no doubt that a multimillion dollar penalty is overkill to deter a private individual from obtaining free songs online… Although Thomas-Rasset played a role in the web of online piracy, she played a minuscule role… It cannot be that she must pay the damages caused by millions of individuals because she was one of two users caught, sued, and subjected to a jury trial… [Joel Tenenbaum in Massachusetts was the other.] This award constitutes the maximum amount a jury could award, consistent with the due process clause.

His $2,250 per song figure is three times the minimum statutory damages of $750, though Davis does acknowledge the difficulty of drawing exact lines between fair and unfair judgments. “Any specific dollar amount will appear to be somewhat arbitrary,” he wrote. “Why is an award of $2,251 per song oppressive while an award of $2,250 is not?" The "3x" multiplier seemed to him a fair one, as such multipliers are routinely used to punish willful offenses (the same amount was chosen in the Tenenbaum case when the judge likewise gutted that verdict).

Thomas-Rasset has made clear to me at her trials that she can't and won't pay even a reduced $54,000 amount, and she has apparently rejected music industry settlement offers that would have her pay even less. Where we go from here is therefore anyone's guess—but continued court action looks likely.

(Sidenote for copyright wonks: Judge Davis declined to include in his injunction against Thomas-Rasset a clause that would bar her from "making available" the songs at issue here. "The Copyright Act does not provide a making-available right," he wrote.)

Update: An RIAA spokesperson tells Ars, "We disagree with this decision and are considering our next steps."

Kiwi Camara, a lawyer representing Jammie Thomas-Rasset, called today's decision "an excellent result. I am sure that the recording industry plans to appeal; when they appeal, we will file a cross-appeal also."

As for Camara's one-time plan to file a class action lawsuit against the entire music industry, I asked him if that was still in the works. "As for the class action," he replied, "you know [Harvard Law's] Charlie [Nesson] and you know us—anything could happen!"

I've actually sat on a Jury that awarded money to the victim in a personal injury suit (person was hit in the head due to negligence of a building contractor) and we didn't award that much. Someone was negligent and physically harmed another person, and they didn't get $54,000. I just don't understand why trading songs on the internet is penalized so heavily...

In my mind, if you catch a person in such an act, charge them 10x what the song costs. Downloaded 100 songs? Pay $1000. With fines like that it would be much cheaper to actually buy them individually off one of the many legal sites and it's not going to bankrupt you.

I'm not sure why the RIAA don't just cut their losses and drop the case -- other than the feeling that they need to obscenely punish Thomas-Rasset. And Thomas-Rasset isn't much better either....

Maybe because they want to set a precedent and also don't want to lose face ?

Precedent already exists, they just don't like it. If you steal five albums from a store you're not going to get smacked with $2 million in fines. At most you'll get a couple thousand and some jail time.

While Davis is less insane than the others, I would hesitate to call it common sense when he erroneously called copyright infringement stealing.

It is sad that even the judge who has been a part of this case for the past 4 years doesn't appear to understand the difference between stealing and infringement. Is that grounds for a mistrial when the judge doesn't know the actual crime being argued?

I'm not sure why the RIAA don't just cut their losses and drop the case -- other than the feeling that they need to obscenely punish Thomas-Rasset. And Thomas-Rasset isn't much better either....

Maybe because they want to set a precedent and also don't want to lose face ?

They have no face left -- both cases have veered into the sea of absurdity, and judges have clued into the fact that the laws, as written, are not able to cover this type of case -- which is why Judge Davis keeps cutting the amount awarded. I would opine that the RIAA runs a greater risk of having a precedent set against, rather than for, their views of how these cases should be awarded.

While Davis is less insane than the others, I would hesitate to call it common sense when he erroneously called copyright infringement stealing.

It is sad that even the judge who has been a part of this case for the past 4 years doesn't appear to understand the difference between stealing and infringement. Is that grounds for a mistrial when the judge doesn't know the actual crime being argued?

Nah certainly not because some armchair lawyers don't like the terminology he uses.Whether you like it or not it is technically correct.

And why are you a more credible authority on whether copyright infringement can involve an act of stealing than a US District Court Judge?

Irrelevant. This is one court case out of tens of millions of file sharers. To assume that copyright can just return to the "good old days" is insanity. If the RIAA wishes to slog through four-year legal campaigns with those who share music one at a time, they are welcome to do so. Meanwhile, I would calmly suggest reinventing their businesses and rebuilding copyright to reflect the realities of the digital age would make a lot more sense.

And I say this as someone who had his own business model decimated by changing attitude toward the value of creative works. Creative work is valueless, or certainly should be valued far lower than our shared arrogance would have us believe. So I changed my model to adjust. I'm still successful (financially), and still do what I love and what my talents allow me to do, and all without shedding crocodile tears.

2,250 times the sale value of each song is well in excess of the 500 times that SCOTUS found "grossly excessive" in BMW v Gore. OTOH, the ruling there DID leave the door open for punishments "necessary to deter future conduct".

Curious to see how the appellate court will rule on this; I doubt it'll go to SCOTUS.

While Davis is less insane than the others, I would hesitate to call it common sense when he erroneously called copyright infringement stealing.

It is sad that even the judge who has been a part of this case for the past 4 years doesn't appear to understand the difference between stealing and infringement. Is that grounds for a mistrial when the judge doesn't know the actual crime being argued?

Nah certainly not because some armchair lawyers don't like the terminology he uses.Whether you like it or not it is technically correct.

(It's true too, never feel more sexy than when I am a pirate... or my wife wears a pirate costume )

I think that if you want to call it stealing then it should get treated just like stealing would and punished accordingly, not these absurd $2m judgments. Otherwise you have a lot of work cut out for you to explain why it should be treated differently from taking a physical album from a brick and mortar store and get its own special laws.

In my mind, if you catch a person in such an act, charge them 10x what the song costs. Downloaded 100 songs? Pay $1000. With fines like that it would be much cheaper to actually buy them individually off one of the many legal sites and it's not going to bankrupt you.

Well, part of the problem with that is just the sheer numbers. Lets say you go and download 100 movies, but you only get caught in the act of downloading one single movie. At that particular ratio (100:1) and a cost of $10.00 per movie (just to make nice round numbers) at that point the downloader still has financial incentive since they're up $900 over what they might have spent. (100 x $10 = $1000, - $100 fine) And that's assuming that that it's a 100:1 caught ratio.

What if it's a 1000:1 ratio because more people are now downloading because of reduced penalties and it strains the capability of the industries to police their copyrights? Don't get me wrong, I'm certainly not a fan of the RIAA/MPAA or their tactics in the blanket John Doe suits, but on such a small scale of punishment vs cost people would probably still risk the odds and would certainly still come out 'ahead'.

So what would be a good solution? A higher fine multiplier would be a deterrent (25x would make a movie $250.00, a song $25.00 or an album $250), but how would you for example monetize a TV show? What is the value of that since it's 'freely distributed'? Are you talking discounted purchase ($5.00 video bin or the $2.00 promo price CD)? There are a lot of potential headaches there. And enforcement, is this going to be a civil infraction punishable by a fine (similar to a speeding ticket), what if you want to fight the fine, local enforcement or arbitration? What is the methodology for detection? Accuracy?

All I have to say is this: $1.54 million was a travesty. $54,000 was still a travesty. $2400 would have been about right to me because of her attitude, perjury, and unrepentant stance. Plus, I'm sure we've spent more than $54,000 (as taxpayers) on the whole case. It's a fact that people are going to share music/movies - it's been happening since VHS/cassette tapes became commonplace and trying to prevent it through punitive legislation/litigation is ineffective.

(It's true too, never feel more sexy than when I am a pirate... or my wife wears a pirate costume )

I think that if you want to call it stealing then it should get treated just like stealing would and punished accordingly, not these absurd $2m judgments. Otherwise you have a lot of work cut out for you to explain why it should be treated differently from taking a physical album from a brick and mortar store and get its own special laws.

This shows us why we have judges; juries, as critically important as they are to our legal process, can be wrong when it comes to detailed points of law. That some punishment is warranted is difficult to dispute (although there are some who do so regardless), but the punishment handed down by the jury is not in line with the Constitution. I would argue that the laws are also not right, that they don't set out appropriate penalties for the circumstances, and I think Judge Davis sees this. Not having the power to actually change the law, however, he's doing the best he can within its strictures.

It is sad that even the judge who has been a part of this case for the past 4 years doesn't appear to understand the difference between stealing and infringement. Is that grounds for a mistrial when the judge doesn't know the actual crime being argued?

While Davis is less insane than the others, I would hesitate to call it common sense when he erroneously called copyright infringement stealing.

It is sad that even the judge who has been a part of this case for the past 4 years doesn't appear to understand the difference between stealing and infringement. Is that grounds for a mistrial when the judge doesn't know the actual crime being argued?

Nah certainly not because some armchair lawyers don't like the terminology he uses.Whether you like it or not it is technically correct.

On what technical ground is it "correct?" Please, feel free to cite US Code and/or case law.

This shows us why we have judges; juries, as critically important as they are to our legal process, can be wrong when it comes to detailed points of law. That some punishment is warranted is difficult to dispute (although there are some who do so regardless), but the punishment handed down by the jury is not in line with the Constitution. I would argue that the laws are also not right, that they don't set out appropriate penalties for the circumstances, and I think Judge Davis sees this. Not having the power to actually change the law, however, he's doing the best he can within its strictures.

Lets hear it for our legal system here. I'm not a scholar, but it sounds like BOTH parties might have done the right thing - the jury's job is to determine the facts, and they found she infringed, the judge's job is to enforce the law, which includes federal law AND the constitution, and he found that the constitution does not allow the level of damages that the federal law does and knocked it down. It will be a very interesting case on appeal.

The end result is that she got hit hard, but in the legal system, that's a small verdict.

This also shows how generalizing from ONE part of ONE case to the entire united states legal system (ex/ law sucks! everything sucks! life is unfair! waaaa!) the way these threads always do by hysterical folks is a bad idea. Our system has multiple chances to get it right - they usually do. This case isn't even over, but this seems like a decent outcome.

Any sympathy I might have had for Thomas-Rasset has flown out the window.

We're a chaotic race. We differ, often, even on the most basic ideas. It seems you've been following the case, but I haven't been. Based on this article alone, I can still feel sympathy for her.

Any way you look at it, for an individual and private user, the amount is exceptionally excessive. We're talking 24 songs, here. $54,000 is probably more than she makes in an entire year before taxes, insurance, transportation, housing, and other required living expenses. Not to mention, of course, the fact that she has a child in her care that she needs to be responsible for.

From http://arstechnica.com/tech-policy/news ... hoices.ars: "Should she accept the offer, it would in turn go to a musician's charity" is utter BS. I'm certain they'll use it to pay for some genius' start-up expenses so that they can pwn the hell out of their paychecks for as long as they play music in the duration of their life.

I do think it's messed up that she suggested it might be her child or ex-BF, but in light of the fact that she was being demanded to pay 1.5+ million USD by the legal system, I'm sure a lot of people would blurt out any scapegoat or excuse that first comes to their mind when faced with such an amazing barrage of litigation as RIAA is wont to do.

Instead:

The case should be settled (both parties should pay for their own lawyer fees).

As part of the settlment: she should be required to purchase professional data removal services to destroy the files from her PC.

As part of the settlment: she should be required to sign a promissory contract that she will not download music 'unlawfully.'

If found in breach of the contract, she may then be taken to court and be held responsible to pay the initial settlement amount minus $1000 to make it an even $1000/song ($24,000 total)

I can agree that she likely didn't cost the RIAA any losses. I'm certain all KaZaa users weren't going to pay for the songs to begin with and knew how to look for the files from others who had the same song shared. I doubt she had ever intended to buy the songs herself, either. Thus, the net loss to them is $0 revenue.

Not that we haven't done this repeatedly, but those who write the laws equate some forms of infringement with theft, one only has to read the congressional record at thomas.gov for the debate around the NET Act to know that yes, those who created these laws do feel that some forms of infringement(but not all) are theft. As such, it is not inappropriate to use that terminology.

The copyright agencies are making a deal with the ISPs to send warnings to the infringers, so a $54K penalty is totally disproportionate with the measures they are putting forward. Even if Thomas-Rasset lied and what not (I imagine it's hard to act sanely when faced with a multimillion dollars suit,) there is still no evidence of actual loss of sales, she didn't profit from the copied songs, and she can't even pay $54K.

I don't think either the jury's or the judge's decision were informed or smart, and it certainly does not educate the Internet users not to share, just to take measures not to get caught or build a better defense case.

Your system is broken at the root when private citizens are being sued under laws that were created for commercial copyright infringements.

Actually the laws were explicitly updated to apply to non-commercial infringement in the 90's. It is not a 'broken' system, it is operating as designed.

That's very true. However, in my time working on a help desk, I can tell you that there were very large numbers of angry people calling me to complain about something not operating in a useful, user-friendly manner, only for me to find that the service was working as designed. In cases like this, and as I was told by several customers, "that means it's designed wrong!"

Your system is broken at the root when private citizens are being sued under laws that were created for commercial copyright infringements.

Actually the laws were explicitly updated to apply to non-commercial infringement in the 90's. It is not a 'broken' system, it is operating as designed.

The NET Act was made in response to massive scale infringement without a commercial motive. JTR was not engaged in massive scale infringement, and she's not being prosecuted under the NET Act anyway, but rather, statutory copyright infringement, which is something designed for massive scale infringement.

The copyright agencies are making a deal with the ISPs to send warnings to the infringers, so a $54K penalty is totally disproportionate with the measures they are putting forward. Even if Thomas-Rasset lied and what not (I imagine it's hard to act sanely when faced with a multimillion dollars suit,) there is still no evidence of actual loss of sales, she didn't profit from the copied songs, and she can't even pay $54K.I don't think either the jury's or the judge's decision were informed or smart, and it certainly does not educate the Internet users not to share, just to take measures not to get caught or build a better defense case.

To be clear, the judge doesn't have authority to just pick his own 'fair' number, he is techically honoring the decision of the jury but reducing the penalties to the maximum allowed by the constitution. You can't infer that he thinks its the right outcome, that was jury decided, but he said that the constitution doesn't allow any higher award than the 54,000. The guy did her a huge favor - don't bust his balls. If he had gone farther, he'd get overturned on appeal (which he still might).

Also, it doesn't matter if you're poor, unemployed, a sob story, your daddy beat you, you're depressed, you just lost your cat, etc., in the legal system. The jury doesn't and shouldn't know that anyway at trial - that would pervert justice. You pay the penalty/ do the time based on whether you broke a specific set of rules. The system would shatter if those elements were allowed to avoid the law. Don't mention those please.

Because copyright infringement is completely different than stealing in the eyes of the law? Look it up.

Why do you assume copyright infringement can't include an act of stealing? Would you automatically assume a charge of robbery doesn't include an act of stealing? How about fraud? Embezzlement? There is no one law for "stealing," since it's an act common to many different crimes.

Besides, I have looked it up and you are simply wrong. The USC lists the penalties for criminal copyright infringement under Chapter 113: Stolen Property. There you'll see all kinds of Federal crimes involving stolen goods and stealing (none of which are called stealing) such as Sale or receipt of stolen vehicles, securities, livestock, Trafficking, Counterfeiting, etc., and . . . §2319 Criminal infringement of a copyright!

I'd be grateful if you could point out, anywhere in the USC, any support for your armchair assumption that "stealing" is some separately defined Federal crime that the Judge should know about. It is no surprise that a Federal District Judge knows there is no such thing as a Federal crime called "Stealing," and it is perfectly correct legal English for him to use the word "stealing" in association with copyright infringement.